Sunday, October 8, 2006

Is Durham district attorney Mike Nifong a fool, who relied too much on "hearsay" information from his lead detective in the Duke rape investigation? Or is he a fox for skillfully using his lead detective as a puppet and intermediary to prosecute a hoax.

The Fool Scenario

One very serious failure of Durham district attorney Michael Nifong's prosecution of three Duke lacrosse players was his delegation of the assessment of the alleged rape victim's credibility to the police. In the most important case of his 28-year career, Nifong, had an aversion to meeting the alleged victim face-to-face and looking her in the eyes. Instead he was guided in his decision making regarding the initial prosecution of the case based on "hearsay" information fed to him by Sgt. Mark Gottlieb.

District Attorney Michael Nifong finally met with the alleged victim, Ms. Mangum, in the presence of three law enforcement officers at the Durham County Courthouse, on April 11th, four weeks after the incident. At that time Nifong was just six days away from getting grand jury indictments in the case and having Reade Seligmann and Collin Finnerty arrested on the morning of April 18th.

Nifong said in court on September 22nd that he met with Ms. Mangum and his detectives on April 11th to discuss the judicial process. Nifong said Ms. Mangum was "too traumatized" to speak directly about the incident. However, in a written report, Sgt. Mark Gottlieb indicated that, at 2:00 p.m. on April 11, "the victim and District Attorney Nifong met one another and discussed the case." Sgt. Gottlieb and Lt. Mike Ripberger were present for all of that discussion, and Inv. Himan was present for a portion of it.

However, Ms. Mangum, was not "too traumatized"to speak to attorney Woody Van, who represented her four years ago, when she was accused of stealing a taxi and trying to run over a police officer. In early April, Van said he spoke with his former client after the alleged incident. How did she seem? "She was concerned but composed, she wanted to know how to address this process — but, overall, subdued," said Van. Chalk up another Nifong lie.

The fact that Mike Nifong wants to suggest that he never actually talked to Ms. Mangum about the details of the incident is amazing. How did he ever evaluate the truthfulness of her allegations and her credibility as witness in a felony gang rape case? Did he even care?

All indications are that Nifong initiated his prosecution of the Duke lacrosse players based primarily on conversations he had with Sgt. Mark Gottlieb. Sgt. Gottlieb was himself handicapped in assessing Ms. Mangum's accusations because he did not take her official written statement, until April 6th, over three weeks after the incident. Gottlieb also relied on his recollection of conversations and interviews with Ms. Mangum, he only took three pages of handwritten notes during the entire case. He finally turned those notes over to the defense on July 17th. Therefore, Mike Nifong was basing his prosecution on the shakiest of foundations - the recollections of a police sergeant who did not like taking notes.

Nifong has also never said something that seems so simple and basic in a case of this magnitude, that is, that he looked the alleged victim in the eyes, listened to, and believed her story. The commonsense approach of a prosecutor wanting to quickly talk to the alleged victim of a high profile crime was not part of Nifong's method. He has continually side-stepped making any assertion about himself personally assessing the credibility of the alleged victim. Nifong has never publically said, "I believe her."

Since Nifong never spoke directly too, or looked Ms. Mangum in the eyes when he was building his case how can he in good conscience look at the three indicted men in court and say they are guilty? Nifong was so confident in the accuser's story and his case that he refused to meet with defense lawyers who said they could prove the players' innocence. Where did he get such incredible confidence?

NIFONG: The circumstances of the case are not suggestive of the alternate explanation that has been suggested by some of the members of the situation. There is evidence of trauma in the victim’s vaginal area that was noted when she was examined by a nurse at the hospital.

Nifong does not say a word about the credibility of the alleged victim during his Abrams interview. The comment about the "trauma in the victim's vaginal area" is at very best some incorrect "hearsay" information that Nifong got from Gottlieb. At worst it is a bold lie.

The O'Reilly Factor 3/29/06:

"There's not a doubt in my mind that she was raped and assaulted at this location."

Durham County District Attorney Nifong said he had no doubt that the victim was raped.

"My reading of the report of the emergency room nurse would indicate that some type of sexual assault did in fact take place," Nifong said.

On March 29, 2006, Nifong even claimed to have read a medical report that, according to discovery, was not printed until March 30, 2006, or retrieved by an investigator pursuant to Nifong's own subpoena until April 5, 2006. Here Nifong is again lying or relying on some incorrect second hand information.

Technically, hearsay is evidence based on the reports of others rather than the personal knowledge of a witness and therefore generally not admissible as testimony in court. But, this is exactly the type of information that Nifong personally relied upon to prosecute the three Duke lacrosse players. Hearsay is not allowed in court and a district attorney in a felony rape case should not pretend to believe it is the truth when conducting an investigation. Nifong is a fool for trusting Gottlieb so much and believing that more evidence, such as DNA would eventually be found.

The Fox Scenario

Sgt. Gottlieb failed miserably as a filter of the truth. But was Gottlieb deceived by Ms Mangum, or was he himself a deceiver, or was he manipulated like a pawn by Mike Nifong in Nifong's use of the case as a re-election vehicle?

Nifong's delegation of the direct assessment of Ms. Mangum's credibility to Sgt. Gottlieb seems to be either a case of extreme laziness or willful neglect. Saying Nifong relied on and was misled by "hearsay" information is actually being extremely generous, and giving a long-time professional prosecutor like Mike Nifong a big benefit of the doubt. Otherwise, you have to conclude he is willfully prosecuting a hoax that he has helped manufacture.

That would explain why Nifong did not want to have any direct contact with Ms. Mangum, because it gives him plausible deniability. In other words, not dealing directly with Ms. Mangum would allow Nifong to prosecute a case he knew to be a hoax, but still give him the option to deny direct knowledge of her fraud, should she ever recant her allegations. That also explains Nifong's vigorous denial that he ever talked to Ms. Mangum about the details of the incident, at their one and only meeting on April 11th.

Under the hoax scenario, Gottlieb is Nifong's puppet and cut-off man. Nifong can now always claim that the truth was cut-off from him at Gottlieb. Nifong is going by the old legal adage: "let your client perpetrate their own fraud." Nifong knows Ms. Mangum's story is a fraud, but it serves his purposes very well by providing a high visibility case he can use to get reelected. He just needs to carefully insure that he doesn't become entangled in her lies.

Nifong as master puppeteer is also demonstrated in how he got Sgt. Gottlieb to break the rules regarding the conduct of the police lineup. Nifong got Gottlieb to employ a lineup with only Duke lacrosse players. A lineup that violated standard police policy. A lineup where Ms. Mangum couldn't possibly fail to identify Duke players as gang rapists.

And since a fraud is being perpetrated Nifong needs to willfully wall himself off from the truth. Hence the use of the proverbial ten foot pole, Sgt Gottlieb, when dealing with Ms. Mangum.

So, Mike Nifong, fool or fox?

update: More discussion of possible Nifong and Gottlieb motives in this case - Nifong: Fool or Fox? [forums.TalkLeft.com]